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1-221 (Original)

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Decisions of NSW Supreme Court
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Wednesday. Mr. Wentworth moved, that Wm. King, who was brought up by a writ of habeas corpus from the jail, where he was detained for being a runaway from the Tamar, should be discharged; but as it appeared that a certiorari had been directed to the committing justice to bring before the Court the depositions taken in this case, - King was remanded till the return of the certiorari.
Thursday. - In the case of William King, confined in the gaol, by virtue of a warrant signed by Mr. Macleod, as a runaway from H.M. ship Tamar, the Chief Justice observed, that in consequence of an application made to the Court, for the discharge of the prisoner King, he had given the subject some consideration; but could not come to any decision until a copy of the proceedings before the Magistrates should be laid before the Court. - (Here the Attorney General intimated that he had just received a return of the certiorari). It had been pretty broadly asserted, that magistrates had not authority enabling them to commit to prison mariners belonging to his Majesty's service. - Though he did not feel disposed at present to enter into the merits of the case, yet he would slightly glance at what he apprehended to be the law of it; and in so doing he could find a variety of statutes which certainly have analogy to the case before the Court; and by which a remedy was provided. The 18 Henry 6, c. 19. constituted desertion a felony; as also did the 2d and 3d of Edward 6; these acts were consolidated into one great code 22 Geo. 2, which were the articles of war; and a breach of the 16th article, was punishable with death or such other punishment as by a court martial should be awarded. If, however, upon a due investigation it should appear that the Magistrate had acted upon a mistaken principle of authority, he would immediately order the prisoner to be liberated; and if on the contrary, he would direct him to be detained. There was another reason which induced him to suspend proceeding relative to the issuing a certiorari; and it did appear to him, that there had been an informality in this part of the proceeding. A notice was undoubtedly required; that notice which he conceived to be indispensably requisite, had not been given.
Monday. - The Attorney General in the case of King observed, that the committal stood on the ground of his being a felon; in point of form, he apprehended it was not necessary for a Magistrate to shew more, than that he actually was a runaway from His Majesty's ship Tamar; and his own confession, recorded in the depositions before the Court, stated that fact. The learned Gentleman contended, that it was quite competent to the Governor, or to the Magistrates, to dispose of him as a felon; for such, by a statute of 22. G. 2 chap. 33 article 16 - sec. 2, he was constituted: he therefore resisted the imputation of the learned Counsel for the prisoner; and claimed King to be dealt with as the law should direct.
Mr. Wentworth remarked, that on a former occasion, he had treated the document he then held in his hand, as a conviction, though in fact it was difficult to affix a precise designation to it; it was laid down in all authorities, that judgment should be definite; it should have a beginning and termination, by 3 Burrough, 1903, it was held that penalty indefinite was void. Here perpetual imprisonment was to all appearance assigned. He did not attempt to contravene the assertion of his learned friend, that desertion was a felony; but he would maintain, though the Magistrate might be legally authorised to commit, yet he could not convict, without the intervention of a jury.
Secondly, he would observe, that the document itself wanted all the essentials of a mittimus, or final commitment; namely, the hand and seal of the Magistrate; it was also invalid on another ground. The depositions did not shew that the charge was made on oath; he would admit that all offences did not require it; but this could only apply when the Magistrate had the positive evidence of his own senses, as if he should have seen a man committing a robbery; but the Magistrate could not positively know, that this man was a deserter. In the third place, he would object to the detention of the prisoner, on the ground that the commitment was not sufficiently explicit and particular, as to the nature of the felony, with which the prisoner was charged; here was no allegation of the Magistrate as to the distinct nature of the felony, which by various cases had been held to be absolutely necessary; for, if technicalities were done away with, the safeguard and of [sic] protection prisoners would be curtailed. On the above grounds, therefore, he claimed the liberation of the prisoner.
The Chief Justice said, the case in his opinion had been very liberally argued on the part of the prisoner. In a calm review of authorities, he certainly was inclined to side with the modern authority of Lord Ellenborough and others; and by this interpretation Magistrates were bound to see that offenders did not escape the law; he would look to the whole range of matter before him, and see if the party had actually committed a felony; if he had not, certainly the Court would order his discharge; but the principal difficulty did not hinge here. The depositions clearly shewed, that he was a deserter; this he would assume, as there was no refutation attempted, but rather the prisoner's own confession. His construction of the various statutes bearing on the present case, was, that Magistrates were bound to put prisoners into the regular channel prescribed by law, for proper punishment; and he therefore should not think himself justified in discharging the prisoner; but order him to be detained either till he should be returned to his ship, or dealt with as the executive authority should direct.